A recent Supreme Court decision has highlighted the necessity to ensure that financial matters are resolved during the course of divorce proceedings. This is particularly true for those acting in person after the cuts to legal aid.

Vince v Wyatt saw a woman whose marriage had broken down almost 30 years ago granted the right to pursue an application for financial remedy from her ex-husband who had, since the divorce, accrued substantial wealth. The Supreme Court unanimously allowed the appeal and directed that the belated claim should proceed in the Family Division of the High Court.

The couple had met in 1981 when she was 21 and he was 19 and married a year later. They had a son and Ms Wyatt already had a child from a previous relationship who was accepted as part of the family. The family by no means lived a life of luxury and mainly subsisted on benefits. The couple separated in 1984 and Mr Vince embarked on a travelling lifestyle, leaving Ms Wyatt to bring up the children without any financial help.

The couple divorced on 26 October 1992. Unfortunately, the Court file was somehow misplaced and therefore it is unknown whether a financial order was made at the time or indeed whether the financial claims were dismissed. The Court stated that they had no reason to believe the latter option, especially without her consent or receipt of a capital payment. The Court made an educated guess that Ms Wyatt had included in her petition applications for the full range of orders as this was usual practice. This was in contrast to Mr Vince’s assertions that the Court ordered he “did not have to pay [the wife] any money”. It was from the late 1990s onward that Mr Vince’s business became extremely profitable rendering him a multi-millionaire.

Ms Wyatt had two more children and the parties’ son went to live with Mr Vince in 2001. Despite Mr Vince’s new found wealth, Ms Wyatt in comparison continued to struggle financially. Following her application to the Court, Mr Vince made a cross application to strike out her claim for financial remedy.

Pursuant to Rule 4.4 of the Family Procedure Rules a substantive application may be struck out if:

The Court may strike out a statement of case if it appears to the Court that:

That the statement of case discloses no reasonable grounds for bringing or defending the application;

That the statement of case is an abuse of the Court’s process or is otherwise likely to obstruct just disposal of the proceedings.

Upon consideration of the power to strike out it was noted that the Family Rules do not contain a corresponding power of summary judgement as per the Civil Rules. This was significant, as the family rules deliberately omit an equivalent power. The Court decided that it was incorrect to say that there were no reasonable grounds for bringing the case, in the absence of hearing any evidence. It was found that it was not a “frivolous, scurrilous or obviously ill-founded application”, nor was it an abuse of the Court’s process.

Furthermore, the strike out application made by Mr Vince was dismissed and, on Ms Wyatt’s application, the Court ordered Mr Vince to make interim periodical payments to her, or indeed “directly to [her] solicitors”.

Mr Vince voiced his upset about the decision, stating that he was “disappointed that the Supreme Court has decided not to bring the case to an end”, three decades after the marriage ended. He expressed a desire to move on and added that people should not have to “look over their shoulders” after divorce.

However, the ruling is significant. Resolution chair Jo Edwards said that the Supreme Court has made it clear “that the draconian power to strike out family proceedings simply does not exist”, although she did stress that the merits of such applications will be dealt with on a case by case basis by the Courts.

This ruling makes it clear that financial matters should be resolved as quickly as possible during divorce proceedings. It would appear that otherwise those who make substantial amounts of money post-divorce will be exposed to “potentially opportunistic claims”. If Ms Wyatt’s application had been dealt with at the time the marriage broke down, it is “likely that a capital clean break would have been achieved” which means that she would have no option to essentially come back for more now.

Ms Edwards added that it would be interesting to see how the Court handles Ms Wyatt’s claim. It is “more likely to succeed on the basis of her contributions through caring for the children after the marriage breakdown”, but the fact that she has left it so long before bringing her claim to the Court may go against her, she added.

Indeed, the Court made it evident that Ms Wyatt would face formidable difficulties in her claim. This was for a number of reasons including the short length of the marriage, the low standard of living enjoyed by the parties, the period of time that has passed since the divorce, the fact that the Mr Vince accrued his wealth post-separation and that the Ms Wyatt made no contribution to this wealth. Nevertheless, the claim is to proceed and I will be sure to keep you all updated!

To those divorcing or divorced already, make sure the financial claims are finalised!

On the 17th April 2014 I had the honour of writing for the firm’s main blog. In this post I covered the huge changes that swept across family law on the 22nd April 2014[1]. These changes include, amongst other things: the introduction of a single family court, the introduction of the Children and Families Act 2014, changes to the requirements surrounding Mediation Information and Assessments Meetings, child arrangement programmes, and the abolition of s.41 of the Matrimonial Causes Act.

The effects of these changes have yet to be seen but it would appear that some bodies are worried that the desired positive results are going to be hindered by the legal aid cuts that were implemented just one year earlier. As my regular readers are aware the legal aid cuts came in to force in April 2013 following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whilst the changes across family law followed the implementation of Children and Families Act 2014.

The Law Society president Nicholas Fluck has stated that ‘The Law Society supports the changes, but the problem for many separating and divorcing couples is getting access to legal advice to help them through the court process, or to find alternatives to court. The cuts in legal aid for family law have put people off from seeking advice and support from solicitors who can explain where they stand and what their rights are.’ He went on to say ‘the fact that more and more people are representing themselves in the family courts is leading to more delay… Mediation can help couples avoid the stresses and strains of court hearings, but it is not suitable in all disputes, particularly those where one party is in a significantly weaker position than the other. In these cases a solicitor is required to protect a client’s interests and be on their side.’[2]

The Ministry of Justice have produced data indicating the impact of the removal of legal aid upon the courts in private family law cases since April 2013. Between April 2013 and December 2013, 34,249 individuals represented themselves within family law proceedings; this is an increase of nearly a third on the same period the previous year. The data also shows that within 52 % of child-related proceedings the parties were unrepresented. In addition to this the number of parties attending court has increased by 5% thus the legal aid cuts have far from discouraged parties from using the court. Based on figures received by Marc Lopatin of Lawyersupportedmediation.co.uk there has been over 40% less publically funded family mediations since April 2013 with the figures falling by 3,705[3]. Furthermore, Mr Lopatin states that ‘between April and December 2013, referrals from lawyers to mediators plummeted by 75%. Meanwhile, referrals to mediators from non-lawyer sources are so low they border on statistical irrelevance: UK-wide referrals from Citizen Advice Bureaus and other advice agencies account for just 3.5% of all referred cases.’[4] Richard Miller, Head of Legal Aid at the Law Society, stated that ‘without lawyers to resolve disputes less contentiously, more couples end up fighting in court, to their own detriment and that of the children of the families concerned.’[5]

The problem is that the respective Acts have in fact served to cause a paradox. The Children and Families Act 2014 aims to reduce the number of parties entering into costly litigation and promotes mediation throughout the legal process and it would appear that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 aimed to do the same. However, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has caused somewhat of a predicament: how do we make parties aware of the possibility of mediation and alternatives to litigation when parties simply cannot afford to instruct solicitors anymore? I do not doubt that if faced with the decision between publically funded mediation and expensive litigation most parties would opt, if possible, for the former. However, if parties act in person solicitors cannot make them aware of the possibilities outside of litigation and the parties enter litigation with no understanding of the full range of opportunities available to them.

So what is the answer? Numerous solicitors across the country now offer free legal advice clinics which assist clients in the initial stages of their cases, allowing them to weigh up their options prior to issuing legal proceedings. Stowe Family Law operates a legal advice clinic which is a great success. In addition to the above, Mr Lopatin suggests that ‘it is about re-casting “Help with Mediation” to include a post-MIAM – but pre-mediation – meeting with an advising lawyer who can earn more than 150 quid to ensure decisions being taken at mediation are informed.’ Whether or not the paradox will be addressed in the near future is unknown but for now it remains in place and parties remain somewhat unaware of their options.

[1]Huge Changes Sweep Across the Family Law Sector, Zoe White, http://www.marilynstowe.co.uk/2014/04/17/huge-changes-sweep-across-the-family-law-sector-by-zoe-white/

[2]Benefits of Family Law Changes Undermined by Legal Aid Cuts, Family Law Week, http://www.familylawweek.co.uk/site.aspx?i=ed129193

On the 3rd April 2014 the University of Bristol published a report entitled Beyond the Adoption Order: Challenges, Interventions and Adoption Disruption. This report resulted from one of the most comprehensive studies to be carried out on adoption in England for years. The study looked into adoption break down and analysed national data on 37,335 adoptions over a 12 year period. The findings suggest that adoption break down is significantly lower than expected with only 3.2% of adopted children leaving there adoptive families prematurely. The reason for this, the report states, ‘became obvious when [they] met the families. The commitment and tenacity of adoptive parents was remarkable. Most parents, even those whose children had left, still saw themselves as the child’s parents and were supporting their children from a distance.’ [i]

The report went on to state that it was suggested that ‘perhaps a revolving door approach was needed for some adopted adolescents, whereby they could spend time away from their families without it being seen as a failure. Instead, most of the families… interviewed spoke of an ‘all or nothing’ social work approach that blamed and judged parents when relationships were just not working, and parents needed respite or young people wanted to leave.’ (Beyond the Adoption Order ). It became apparent to the researchers that parents whose relationship with their adoptive children had broken down were often left feeling ‘blamed, demoralised, and unsupported’ (Beyond the Adoption Order), with many of them losing all faith in the system. The report stated that adoptions that occurred during the teenage years were ten times more likely to breakdown. The research suggests that more support is offered in the early years of adoption which does not last the course. There are limited resources and support for adopted teenagers and their adoptive parents.

In addition to the data analysed 390 adoptive parents, looking after 689 adoptive children, returned surveys that asked for an assessment of their current relationship with their adoptive children. 66% of the surveys reported that the adoption was going well. A correlation was found between adoptive parents who were struggling to care for their adoptive children or those with adoptive children who left home prematurely and adoptees with a history of domestic violence, sexual abuse and neglect. Within 91% of adoptions that had broken down the adoptive child had witnessed domestic violence. Further, within 34% of adoption break downs the adoptive child had been a victim of sexual abuse. Mental health problems were prevalent with 97% of those children that had left home suffering from some form of mental health problem.

Professor Julie Selwyn stated that they ‘had not expected child to parent violence to feature so strongly in parental accounts of challenging behaviour. Young people were mainly violent to their mothers, but fathers, siblings, pets and in one case, grandparents had also been assaulted.’ She went on to say that ‘there is an urgent need for Children’s Services to develop support services for adopted teenagers and their parents and for mental health services for young people to be improved.’ (Beyond the Adoption Order) Upon leaving the adoptive home most of the children re-entered care and were extremely difficult to place. Many of them showed extreme and challenging behaviours such as self-harming, attacking others and committing serious criminal offences.

The report makes a number of recommendations to improve the current situation. Among these recommendations were the following:

Require adoption agencies to demonstrate that adopted children know about and have access to support services, as well as their adoptive parents.

Encourage development of interventions that focus on the child/parent relationship and whole family interventions.

Support the evaluation of the effectiveness of the youth justice system’s interventions to address child to parent violence (CPV) for adoptive families in which there is CPV. Such 289 interventions include Non Violent Resistance (NVR) and Break4Change.

Examine legislation and guidance to ensure that respite care can be provided without making the child ‘looked after’.

Entitle young people leaving adoptive families to leaving care services, especially support for further education.

Improve training, supervision and support needs for foster carers and family placement workers in relation to the carer’s and professional’s role and responsibilities for children who move from foster care to an adoptive family.

Provide needs led rather than service led interventions. Too often, parents and children got what was available in house and not what was needed.

Identify young children who are aggressive in foster care and intervene to address the aggression.

Areas for further research were also identified promoting an overhaul in the current support system in place for adopted children and their parents.

Following on from my previous blog post entitled ‘29th March 2014, save the date: The Marriage (Same Sex Couples) Act 2013’, the day is finally dawning, with some same-sex couples planning on marrying at 1 minute past midnight on the 29th March 2014. So what does this all mean for same-sex couples?

As per my previous blog post, and probably the most obvious change, same-sex couples will now be allowed to legally marry. Furthermore when the act comes in to force, under s.9[i] anyone who is registered in a civil partnership will be able to convert that partnership into a marriage. Under s.9(6) when a civil partnership is converted into a marriage, the civil partnership will come to an end and the marriage will be treated as though it had existed from the date of the civil partnership. However, the act doesn’t provide a mechanism within which civil partnerships registered abroad can be converted into a marriage within England and Wales. These civil partnerships will continue as civil partnerships governed by the Civil Partnership Act 2004 which remains in force.

S.11(1) of the Marriage (Same-Sex Couples) Act 2013 states that ‘in the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.’ According to schedule 3 part 2 of the Act, ‘“husband” includes a man who is married to another man; “wife” includes a woman who is married to another woman’. However, schedule 4 part 3 of the Act does not change the laws surrounding adultery. It is stated that ‘only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section’. Therefore it is not possible for an individual in a same sex marriage to file for adultery.

Under schedule 4 part 7 the government can enact future provisions limiting the equivalence of all marriages. Currently where an occupational pension scheme provides survivor benefits, the scheme only has to take into account the rights accrued from the date the Civil Partnership Act came into force. Under this schedule the Secretary of State is required to carry out a review relating to occupational pension schemes. This review must be published by 1 July 2014.

Same sex couples can now both marry and become civil partners, thus allowing them to decide which they would prefer. S. 15 of the Act states that ‘the Secretary of State must arrange for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and for a report on the outcome of the review to be produced and published.’ The Act allows the marriage of a same sex couple in any appropriately registered building including armed forces chapels and in accordance with Quaker or Jewish customs where the relevant governing authority has opted in. The Church of England remains opted-out. There is no compulsion on any person to conduct a same sex marriage according to religious rites. A review of this is to be conducted and a report of which should be published by January 2015.

Same sex marriages are not currently legal within Northern Ireland and whilst the Act anticipates same sex marriages becoming legal in Scotland, at this time this is not the case. It follows that if a civil partnership is dissolved within Northern Ireland or Scotland, this will also bring the marriage to an end in England and Wales.

Schedule 3 of the Act states that within legislation ‘a reference to persons who are not married but are living together as a married couple is to be read as including a reference to a same sex couple who are not married but are living together as a married couple’.

The ability of two persons of the same sex to marry is extremely important to transgendered people because the position until the now has been that where a person in a marriage is issued with an Interim Gender Recognition Certificate it has the effect of making the marriage voidable. An individual would currently not be issued with a full Gender Recognition Certificate until the marriage has been annulled. Therefore, prior to the new Act a happily married couple would have to divorce if one of the parties to the marriage wished to officially change their gender. This also applied in the same way to those in a civil partnership. Schedule 5 of the new Act covers this issue and allows an interim recognition certificate to be issued to a married person and as long as their spouse consents to the continuation of the marriage following the issue of a full gender recognition certificate, then a full certificate must be given. This is applicable to civil partners whose partnership is converted into a marriage. The Act also covers foreign marriages and their continuation following a change of gender.

I don’t know if any of you tuned in to the Grammy’s this year, if you did you may have seen 34 straight and same sex couples say ‘I do’. The controversy following this event highlighted that there is still a battle to be fought for same sex marriage in many countries across the world; the Marriage (Same Sex Couples) Act 2013 is a brilliant step toward equality within England and Wales and one that we should be proud of.

In the last few days I have heard a lot about the case of Gohil v Gohil [2014] on the legal grapevine and so as I finished off for the day yesterday I decided to take a closer look. After reading the case I now understand the hype: in short summary the Husband in this case applied to the Court of Appeal, after his ex-wife successfully appealed to the High Court to have the original consent order in the financial remedy proceedings set aside. During the original financial remedy proceedings the wife was adamant that the husband was not fully disclosing his personal assets, the husband lived a somewhat lavish lifestyle despite his apparently limited means. However, the wife and husband signed the consent order and the divorce was finalised in 2004. Only three years later the husband was arrested and in November 2010 he was convicted of numerous accounts of fraud and money laundering amounting to over $57 million. The wife’s appeal to the High Court resulted in the setting aside of the 2004 consent order and an order as to costs against the husband. However, the Court of Appeal upon hearing the husbands case for appeal allowed his appeal and stated that while their sympathy went out to the wife the judge at the court of appeal had been wrong to go ‘from the preliminary stage of allowing the reception of fresh evidence to making an order actually setting the 2004 order aside, without any proper fact-finding hearing and on the basis of findings of non-disclosure that were not, on the material available, open to the court.’[i] Despite the husbands complete lack of disclosure the order from the High Court was dismissed along with the costs order and the original 2004 order now stands.

So what exactly happened here? In May 2002 based upon the husbands suspected adultery and unreasonable behaviour the wife issued for divorce. The Decree Nisi was pronounced in March 2003, this being made absolute following the conclusion of the financial proceedings in 2004. The financial proceedings were far from straight forward, and the husband’s financial disclosure showed limited means and assets, with a number of resources allegedly owned by his parents but enjoyed by him. Despite his apparent limited means the husband appeared to be leading a somewhat lavish lifestyle indicative of wealth beyond that disclosed. The financial remedy proceedings were however concluded by consent on 30 April 2004. In April 2006 the Wife applied for an upward variation of her maintenance order and in addition she applied to the High Court for leave to appeal out of time against the 2004 consent order. This appeal was denied. Proceedings in relation to the upward variation continued and on the 3 of July 2007 the wife issued an application to set aside the 2004 consent order on ‘the grounds of alleged serious material non-disclosure, fraud and misrepresentation by the husband.’ (Gohil v Gohil [2014]). The husband was arrested in 2007 and later found guilty in November 2010 of money laundering. ‘The husband was found guilty on four counts of money laundering valued at over $20 million and later pleaded guilty to a number of other charges, including fraud and six counts of money laundering valued at approximately $37 million. He was sentenced to ten years imprisonment.’ (Gohil v Gohil [2014]). It was alleged that the husband assisted James Ibori, a former Nigerian State Governor, to squirrel away large amounts of money into bank accounts across the world.

Interestingly, and slightly off point here, in 2012 numerous newspapers reported on a phone hacking security firm with links to Scotland Yard, with one newspaper stating that ‘anti-corruption detectives [were] examining allegations that two RISC executives bribed officers on an anti-money-laundering unit (SCD6) for information about the case they were building against their Nigerian client, James Ibori, a former state governor, and his British solicitor Bhadresh Gohil.’[ii] Following this Mr Gohil ‘lodged grounds of appeal after the standard investigation revealed claims of corruption during the probe by Scotland Yard’s SCD6 unit into him and Ibori.’[iii] And ‘in a further twist, Gohil also claims he had discovered that one of the jurors deciding his case was a “senior employee of the Department for International Development” — the Whitehall department which funded the Met’s SCD6 investigation into Ibori.’ (The Evening Standard).

Back to the current case in hand, following his arrest the wife sought disclosure of key material from the crown prosecution service (CPS), this application being ‘opposed by the Home Secretary and the CPS on the basis that the documents sought by the wife contained information consisting of, or derived from, material received from foreign governments or other authorities pursuant to requests for ‘mutual assistance’ (Gohil v Gohil [2014]).’. Disclosure of such material being ‘strictly bound by treaties, conventions and inter-state schemes’. (Gohil v Gohil [2014]). On the 30May 2012, Moylan J order the CPS to disclose the requested and relevant material arguing that to do so would be proportionate. This order was then appealed by the CPS and the Secretary of State and on the 26 November 2012[iv] the appeal was upheld. However, ‘the Court of Appeal decision on disclosure post dates Moylan J’s substantive determination of the issue to set aside the April 2004 consent order which was given in a reserved judgement handed down on the 25th September 2012 ([2012] EWHC 2897 (Fam)). and it ‘follows that that decision, which is the decision currently under appeal, was determined without recourse to the disclosure that had been ordered from the criminal proceedings and which, as a result of the Court of Appeal decision, will not now take place.’ (Gohil v Gohil [2014]).

In June 2012 the issue of whether to set aside the consent order came before Moylan J in an eight day hearing, at the end of which Moylan J stated that there were two bases on which the wife could seek to set aside the 2004 consent order:

“a) That there has been non-disclosure which had led to the court making an order which is substantially different from the order which would have been made if proper disclosure had been made: Lord Brandon in Livesey v Jenkins [1985] FLR 813 at 830; and/or

b) That there is new evidence which is such as “would probably have an important influence on the result of the case”. Denning LJ (as he then was) in Ladd v Marshall.” (Gohil v Gohil [2014]).

At the conclusion of the case it was held that the husband had failed to give full and frank disclosure of his financial circumstances which resulted in the granting of the wife’s appeal and the setting aside of the order. Furthermore an order as to costs was handed down against the husband. It was held that the degree of non-disclosure was such that the court would have made a substantially different order had they known all of the facts.

The husband’s counsel, James Turner QC, upon appealing to the Court of appeal made various submissions the most important being that ‘there are two distinct stages involved in a Livesey v Jenkins application: determining as, a matter of fact, whether there has been material non-disclosure and, secondly, if so, determining whether the original order should be set aside. Any consideration of whether fresh evidence should be admitted can only be within the first stage, and, probably, at a preliminary point in that stage.’ (Gohil v Gohil [2014]). This was picked up on by the judge and upon upholding the husband’s appeal it was stated that it was not ‘legally permissible… to go… from the preliminary stage of allowing the reception of fresh evidence to making an order actually setting the 2004 order aside, without any proper fact-finding hearing and on the basis of findings of non-disclosure that were not, on the material available, open to the court.’ (Gohil v Gohil [2014]). Therefore, whilst admitting sympathy for the wife, the court held that ‘the judge’s order (including the provisions for costs) must be set aside and be replaced with an order dismissing the wife’s application.’ (Gohil v Gohil [2014]). The decision was agreed upon by both Lord Justice Pitchford and Lord Justice Arden.

With the case read and my blog post written I left the office and began to walk home. The air was filled with the smell of smoke, early this morning a fire broke out at Prezzo Restaurant in Harrogate and was still blazing at 5pm. Thankfully no one was hurt and we can only hope that Prezzo, the surrounding buildings, and flats are back to their former glory in the near future

When a relationship breaks down, one of the hardest things to deal with and one of the most contentious issues can be what the arrangements will be in relation to the children. Unfortunately, parents will have to accept that they will not be able to spend the same amount of time with their children and this can be exceptionally hard for parents who are used to seeing their children every day.

The law in relation to children has been reformed and today the Children and Families bill was given Royal Assent. The act will result in changes to the law to give greater protection to vulnerable children and for children whose parents are separating. In addition, there will also be a new system introduced for disabled children and those with special needs and extra support for parents.

Here at Stowe Family Law, one of the biggest changes that we will see after the implementation of the act is the abolishment of residence and contact orders, which have been replaced by the all-encompassing Child Arrangement Orders. Under Section 8(1) of the Children Act 1989, as amended, a Child Arrangements Order means an order regulating arrangements relating to any of the following:

a) With whom a child is to live, spend time with or otherwise have contact.
b) When a child is to live, spend time with or otherwise have contact with any person.

It would appear that the logic behind the change is that the Courts believed parents to be making applications for Contact or Residence simply for the status, finding that they had not attached importance to the actual substantive matters. Furthermore, what is apparent from the change is that the focus is henceforth to be on the content of the order, rather than its name. The underlying aim in the change of terminology is to prevent the historic conception of there somehow being a winner and a loser in children cases.

However, that being said, the Child Arrangement Orders definition does not, in reality, look dissimilar to Residence and Contact. Ultimately, they still provide for where the child will live and with whom, when and how the child is to spend time.

Parental involvement presumption
What the Children and Families Act most notably does, is tries to address the common perception that the current law does not fully recognise that it is crucial for a child to have both of their parents involved in their life. This problem was addressed by way of Clause 11 of the Bill which most definitely falls within the ambit of the controversial discussion on whether there should be a statutory presumption in private law, that there should be shared parenting or parental involvement.

Clause 11 introduced a new section 1(2A) into the Children Act 1989 which requires the Courts to “presume, unless the contrary is shown” that involvement of each of the child’s parents in their life “will further the child’s welfare”, when considering applications for the discharge or variation of a section 8 order.
However, it should be highlighted that this new insertion into the Children Act does not in fact mean that all parents will fall within its scope. This is because Section 1(2A) also states that

“if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and is to be [so treated] unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement”

Therefore, if a parent’s involvement would be seen to put the child in harm’s way, the presumption will be rebutted. Even in cases where the presumption is applied, the Courts must still consider whether it should be rebutted if it is decided that the involvement of the parent would not further the child’s welfare.

Mediation
Another area, in which the Children and Families Act will have an impact, is by the encouragement to resolve matters without litigating. Parties to a children dispute are now required to attend a mandatory MIAM(Mediation Information and Assessment Meeting). MIAM’s are central to the Child Arrangement Programme which was introduced by the Act. The purpose of the MIAM is to provide information about mediation and discuss how the dispute may be resolved without the need for Court intervention. There are, however, categories of persons that will be exempt from the requirement to attend, including cases concerning:
-domestic violence
-child protection concerns
-Urgency
-Non residence is England and Wales
-Lack of contact details for respondents

The exemption categories can be found in rule 3.8 of the Family Procedure Rules.

It remains to be seen how the requirement to attend MIAM’s will work in practice and indeed whether they will lead to a reduction in Court applications… Only time will tell.

The Senior Judiciary to the Ministry of Justice has criticised the Ministry of Justice’s consultation paper, ‘Court Fees: Proposals for Reform’[i] which aims to increase the court fees across England and Wales. The criticism was published on the 4th of February 2014 and followed previous criticism aired by the Civil Justice Council[ii] in January 2014. The opening paragraph of response to the consultation paper states:

‘Access to justice is a fundamental feature of any society committed to the rule of law. It is not a service which the State provides at cost, but an element of the State and its governance essential to the rule of law and the operation of a free market economy. The State is therefore under a duty to provide effective access to justice irrespective of the State’s ability to secure full-cost recovery.’[iii]

The consultation paper states that:

‘The government believes that it is reasonable to charge more in court fees for certain types of proceeding, because we believe that the party bringing the case will be able to afford to pay a fee which better reflects the value of the proceedings to them.’ (Court Fees: Proposal for Reform)

The types of proceedings include money claims, commercial proceedings, hearings (fast track and multi-track), and divorce proceedings. The ambit of divorce proceedings stretches from financial remedy to both public and private child law cases, with private child law applications being levelled at £215, an increase from £180 and £175 for certain applications. Applications in private child law cases that are currently charged at £95 will not be increased. The consultation paper states that they ‘estimate that the cost of an uncontested divorce was around £270. The government’s view is that the fee for a divorce petition should be set at a level above costs. Our proposal is that the fee should be £750, or around three times the cost of the proceedings.’ (Court Fees: Proposal for Reform). They follow this suggestion with a question ‘Do you agree that the fee for a divorce petition should be set at £750?’ (Court Fees: Proposal for Reform). The Senior Judiciary stated that they do not agree with the proposal to increase the divorce petition fee to £750. They stated that:

‘Almost certainly, the suggestion would act as a significant impediment to access to justice for many individuals. The great majority of petitioners are women. Many of them will be of limited means, but not entitled to fee remission and the new fee will be unattainable. They may well forgo divorce; and when forming new relationships may prefer to cohabit rather than re­marry. Thus, they would lose the many financial and other protections afforded to married women under the existing law.’ (Court Fees: Proposal for Reform).

Furthermore, they stated that the ‘enhanced fee… significantly exceeds the value of the work in administering the case in question’, and that ‘The Government accepts (paragraphs 71 and 188) that the current fee of £410 already exceeds the actual cost of the administration of an undefended divorce case, namely £270. Currently, the profit element on each petition is £140. There are around 120,000 such petitions annually. The revenue raised from a captive divorce market is already £16.8 million (£140 x 120,000 = £16.8 million).’ (Court Fees: Proposal for Reform). In addition the Senior Judiciary states that they do not understand, ‘why it is right that those who can afford to pay more should do so to ensure that the courts are properly funded. We question whether it is appropriate that this particular sector of the litigating community should assume so large a responsibility to fund the courts properly, rather than the general taxpayer.’ (Court Fees: Proposal for Reform).

According to the Senior Judiciary the increase of court fees across the board would result in an individual’s access to justice being severely impaired. When you combine this with the reduction in legal aid many individuals may forgo resolution of their legal matters. Individuals may opt to remain married and simply separate, which could result in parties not gaining any of the benefits of divorce such as asset division and spousal maintenance. In addition they would also be left unable to remarry. Furthermore, some parties find it impossible to resolve their private child matters without the input of the court and with the increase in costs in this regard they may not have access to this input. This could leave parents with limited access to their children and children without defined routines.

[i] Ministry of Justice, Court Fees: Proposal for Reform, December 2013, (this document can be found through the following link: https://consult.justice.gov.uk/digital-communications/court-fees-proposals-for-reform)

[iii] Judiciary of England and Wales, The Response Of The Senior Judiciary To The The Ministry Of Justice Consultation Paper Court Fees: Proposals For Reform (Cm 8751), http://www.judiciary.gov.uk/Resources/JCO/Documents/Consultations/senior-judiciary-response-court-fees-proposals-for-reform.pdf

In March 2013 there were 68,110 children in local authority care in the United Kingdom. Between the years of 1999 and 2011 there were a total of 233,934 adoptions worldwide, with children under the age of 1 year making up 40% of these adoptions. Just over 28% of the worldwide adoptions were from China.[i] In addition to this it is estimated that every year within the UK over 50 babies are left abandoned. The BBC recently wrote an article[ii] in this regard stating that campaigners are calling for the introduction of ‘baby hatches’ across the UK where ‘desperate mothers can leave their babies in safety’, this being something that has been ‘widely used in European countries, since 1999 when they were first used in Germany.’

Adults, who were adopted as children, are often left with the question of who their biological parents are. In the UK, once an adopted child attains the age of 18 years they have a right to apply to see their birth records under s.60 of the Adoption and Children Act 2002[iii]. Furthermore they have the right to join the Adoption Contact Register, which is aimed at helping adopted people gain the contact details of birth relatives who are also registered. There are however two competing rights in play here: those of the adopted child and those of the biological parents. Both individuals have rights under Article 8 of the European Convention of Human Rights, ‘the right to respect for his private and family life.’ Therefore, the right of the adoptive child to access information pertaining to the identity of their biological family is juxtaposed with the right of the biological parents to anonymity and privacy. At present an adopted child has no legal right to access any information pertaining to their birth parents aside from the information that may be found on their birth certificate.

With the growing number of national and international adoptions and with the influx of children in local authority care in the United Kingdom it is impossible to ignore the question of jurisdiction and in particular how the domicile of origin of these children is decided and defined. The jurisdiction of a court in England and Wales to entertain matrimonial proceedings is governed by the Domicile and Matrimonial Proceedings Act 1973[iv], s.5(2) which states:

‘The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if)-

a) The court has jurisdiction under Council regulation (EC) No.2201/2003- ‘Brussels II Revised’ or

b) No court of a Contracting States has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.’

In the recent case of Ray v Sekhri [2014] EWCA Civ 119[v] Lord Justice McFarlane stated that ‘Holman J rightly relied upon paragraph 8 of the judgment of Arden LJ in Barlow Clowes International Limited v Henwood [2008] EWCA Civ 77[vi] as providing a convenient summary of the relevant principles of the law of domicile in the following terms:

“The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:

(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to 126).

(ii) No person can be without a domicile (Dicey, page 126).

(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to 128).

(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).

(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).

(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to 138).

(vii) Any circumstance that is evidence of a person’s residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143).

(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to 151).

(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to 153).

(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).”’

Lord Justice McFarlane further referred to the leading case of Udny v Udny (1869) 1 LR Sc & Div 441 where ‘the issue was as to the domicile of the respondent’s father at the time of his (the respondents) birth’. The court held that the respondent’s domicile of origin was intrinsically linked to his father’s domicile. Thus while the respondent was born and lived outside of the UK, the respondent’s father’s domicile was Scotland and therefore the respondent’s domicile of origin was adjudged to be Scotland also.

So where does this leave adoptive parents, children who have been adopted and children who were abandoned, not adopted but are later involved in marital litigation?

The Adoption and Children Act 2002 states, at s.67 (1), that an adopted person is to be treated in law as if the person is the legitimate child of the adopter. Furthermore, Bromley’s Family Law (Oxford University Press) [6th Ed.][vii] states that by virtue of s.67 of the Adoption and Children Act 2002 an adopted child’s original domicile of origin is replaced by a new replacement domicile of origin upon adoption. The adopted child’s domicile of origin is generally accepted as being determined at the time of the child’s birth; however the child’s new domicile of origin will change to that of the adopting fathers. If there is no adoptive father then that of the adoptive mother. This therefore resolves the question of where adopted children stand in regard to their domicile of origin. However, it does not answer the questions in relation to children of unknown fathers and abandoned children.

Colliers Conflict of Laws by Pippa Rogerson and John Collier[viii], states that ‘an illegitimate child and… a posthumous child, that is a legitimate child born after the father’s death, both take the child’s mother’s domicile’ therefore the child of an unknown father will take their domicile of origin from their mother. Moreover, it states that ‘a foundling or (a child) whose parent’s domicile is unknown is domiciled in the place where he or she is found or born’.

Something of further interest is that the British Nationality Act 1981 states, at s.1(2)[ix] that ‘a new-born infant who, after commencement, is found abandoned in the United Kingdom, or on or after the appointed day is found abandoned in a qualifying territory, shall, unless the contrary is shown, be deemed for the purposes of subsection (1)—

(a)to have been born in the United Kingdom after commencement or in that territory on or after the appointed day; and

(b)to have been born to a parent who at the time of the birth was a British citizen or settled in the United Kingdom or that territory.’

Therefore, an abandoned child, found within Britain or the British territories will be classed as a British citizen.

There are a number of conclusions that can therefore be made from this information.

Firstly, adoptive parents are legally judged to be the adoptive child’s legitimate parents and their child will take the domicile of origin from the adoptive father or the adoptive mother should there be no father.

Secondly, for adopted children, who are now adults and sadly facing litigation, their domicile of origin will be that of their adoptive parents and thus dependent on habitual residence they may have the ability to establish jurisdiction within the UK, or the country in which their domicile of origin vests.

Finally, for abandoned children, who are now adults and sadly facing litigation, their domicile of origin will be adjudged to be that of the country in which they were born or found and thus, once again, dependent on habitual residence they may have the ability to establish jurisdiction within the UK, or the country in which their domicile of origin vests.

On Saturday the 8th of March 2014 it was International Women’s Day. The first International Women’s Day was held in 1911, however it wasn’t recognised by the United Nations until in 1975. As of 1996 the United Nations have declared annual themes which have ranged from ‘Celebrating the past, Planning for the Future’[i] and ‘Afghan Women Today: Realities and Opportunities’ (International Women’s Day), to ‘Empower Rural Women – End Hunger and Poverty’ (International Women’s Day) and ‘A promise is a promise: Time for action to end violence against women’ (International Women’s Day). This year’s annual theme was ‘Inspiring Change’, which aims to encourage women’s advancement across the globe. ‘It calls for challenging the status quo for women’s equality and vigilance inspiring positive change’ (International Women’s Day).

Coinciding with the celebration of International Women’s Day, Clare’s Law was rolled out across England and Wales. Some of you may remember my blog post on Clare’s Law on the 26th of November last year, which contained information as to the intended effect of Clare’s Law and the case upon which it was based, that of Clare Wood. For those of you who didn’t have a chance to read the post, Clare Wood was a thirty six year old woman who was brutally murdered by her ex-boyfriend just 72 hours after he was released from police custody. Clare was unaware of her ex-boyfriend’s history of domestic abuse against women, which her father argues was a major contributing factor to her death. Clare’s father argued that had Clare known of her ex-partner’s history for violence she may not have begun dating him, let alone stayed with him. Clare’s father began a campaign for a law whereby individuals could access information regarding their partner’s history for domestic abuse or acts of violence.

The Domestic Violence Disclosure Scheme, which is designed to allow disclosure of an individual’s history of violence, has now been rolled out across England and Wales. This follows a fourteen month pilot scheme. Further to this Domestic Violence Protection Orders (DVPOs) have also been introduced which allow the police and the magistrates court to offer ‘protection for the victim in the immediate aftermath of a domestic violence incident. Under DVPOs, the perpetrator can be prevented from returning to a residence and from having contact with the victim for up to 28 days, allowing the victim a level of breathing space to consider their options, with the help of a support agency. This provides the victim with immediate protection. If appropriate, the process can be run in tandem with criminal proceedings.’[ii]

Clare Wood’s father, Michael Brown, stated that he was delighted with the news but he ‘must admit it’s tinged with a bit of emotion and a bit of sadness but we have got what we were fighting for – to bring protection into the country for half the population’[iii] . ‘On average two women a week are killed by a current or former male partner’[iv], furthermore ‘one incident of domestic violence is reported to the police every minute’ (Women’s Aid). In addition, ‘one in six men’ (Women’s Aid) are victims of domestic violence. These statistics are skewed by the fact that numerous acts of domestic violence go unreported and that emotional abuse is often not regarded as a crime and is, therefore, not included.

Home Secretary Theresa May, a supporter of the scheme, stated that she is ‘determined to see a society where violence against women and girls is not tolerated, where people speak out, and where no woman or girl has to suffer domestic abuse’[v]. However, there are a few people who are not sure what the law will actually achieve and whether Theresa May’s aims will be realised. Jane Keeper from Refuge, a domestic violence charity, states that ‘most perpetrators of domestic violence are never known to police, social care or the other agencies – so usually if a woman asks the police the likeliest thing, even if he is a perpetrator, is they are not going to know anything. The real problem is women we are working with right this minute, every day, experience really shocking failures on the part of the police and other state agencies’ (BBC News).

Whether or not the scheme will have the required effect of drastically reducing domestic violence against both women and men is yet to be seen. However, for it to have any effect it has to be used and the information that is given needs acting upon. Mr Brown, told BBC News ‘it’s there to be used. Get it used, ask! If you are in a domestic violence situation or you think you could be seek advice and get out of there, because the ultimate is 120 women a year have lost their lives, mostly at a young age’ (BBC News).

How is it March already? The year appears to be flying by, it feels like only yesterday that I was signing off for the Christmas holidays and yet it is now nearly Easter. Before you know it spring will be over, summer will be in full swing and we might even get a bit of sun. Anyway, enough about the seasons, I doubt you tuned in to this blog to be read about the time of year or the weather. If you did may I redirect you to the Met Office’s home page they seem to be somewhat aware of the current weather in the UK. If you, however, stumbled across the blog in search of current legal affairs and family law updates you’re in the right place.

Today I thought I would take a look at the new draft guidance published by the Department of Education aimed at helping social workers and other professionals working within public child care understand and navigate their way through the new adoption system. A link to the open consultation paper, ‘Improving the adoption system and service for looked-after children’ can be found at the end of this article. The consultation is open until the 11th of April 2014. The proposed changes to the adoption system and statuary guidance result from part 1 of the Children and Families Bill, a link to which can also be found at the end of this article. The Bill is still making its way through the governmental process, stages of which, in summary, include:

1. House of Commons:

First reading

Second Reading

Committee Stage

Report Stage

Third Reading

2. House of Lords:

First reading

Second Reading

Committee Stage

Report Stage

Third Reading.

3. consideration of amendments.
4. Royal Assent

The draft guidance, ‘Improving the adoption system and services for looked-after children’ was published on the 28th of February 2014 and runs alongside a number draft regulation changes. The premise for the legislative changes and guidance being that the government wishes to see more children adopted without the average two year delay between entering care and moving in with an adoptive family. The changes within the area promote schemes such as fostering with the intention of adopting and are intended to improve the support offered to adoptive families.

Further to this the changes include removing the risk that ethnicity is prioritised over other factors within adoptive consideration; ensuring that information regarding entitlement to adoptive support and other governmental schemes is given to prospective adopters; the removal of restrictions which previously prevented prospective adopters from playing crucial and active roles within the adoptive process. These reforms follow those implemented last year which include a two stage process improving the speed of approval of prospective adoptive parents to, on average, six months after application; a legal duty on adoption agencies to refer adopters to the adoption register within three months of approval; and a duty to ensure all information on children awaiting adoption is constantly updated and children are referred to the register within three months of the decision to allow adoption being made. Furthermore every local authority will now be required to have a Virtual School Head, whose role is to improve and encourage the education of children under the local authorities care.

Children and Families Minister Edward Timpson stated that the ‘reforms to the adoption register, greater use of fostering for adoption and the removal of often unnecessary delay, will mean would-be adopters can play a much greater role in the process and will ensure children who need them are given stable, loving homes with their new families much more quickly. The revised adoption guidance will also make it much easier for social workers to follow the new processes when considering adoption for vulnerable children. It means they can make the best possible decisions in the interests of the 6,000 children waiting for a loving home.’